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Letter from AmeriKat I - Viacom v YouTube litigation

The AmeriKat is now back in her lovely London abode, all toasty warm from the arctic air that is blowing through the dark streets of south west London. Her transition back to the island, however, sounded with a thud. With no tailwind, turbulence all the way from the Saint Lawrence River to Cork and the arrival of one of her new suitcases appearing to have been dragged across the tarmac by a plane, she was exasperated. However, after a good night’s sleep, some sour candy intake and some Les Paul and Mary Ford tracks, the AmeriKat snuggled into a night of American IP in 2010. She is excited to see that the year in American intellectual property has started with a bang instead of a thud!

Viacom v YouTube litigation awakens for the New Year

Last week the AmeriKat said she hoped to be busily reporting on Premier League v YouTube and her wish has been answered in part. The sister case to the Premier League litigation (reported here) is the earlier case brought by Viacom against YouTube in 2007 for copyright infringement. Viacom owns Paramount movies and the MTV music video networks. Both sets of complaints center on the plaintiffs’ content uploaded onto YouTube by third-party users and YouTube, once notified, not doing enough to remove the infringing content or preventing future infringements. YouTube countered by sailing into the Safe Harbor provisions of the DMCA, stating that they did not know of the infringement and that they had done enough to protect the claimants' copyright. Now, after nearly three years of lengthy discovery and depositions, the case is finally starting to get going again.

On 21 December 2009 Viacom wrote to Judge Stanton, informing him of their intent to file a motion for summary judgment. This was quickly followed by Google, YouTube’s parent company, one week later. Viacom’s letter restates its main argument that YouTube knew exactly what they were doing and did so in the full knowledge that they were profiting from the on-going infringement:

“[The Defendants] are liable under the Supreme Court’s Grokster case for contributory infringement because they operated YouTube with the unlawful objective of facilitating copyright infringement as a central part of their business plan to fuel YouTube’s meteoric growth. They are also liable under the well established doctrine of vicarious copyright liability, which applies where a business derives a direct financial benefit from infringing activity and has the right and ability to control it, but refuses to do so.”

Therefore, argues Viacom, YouTube is disqualified from relying from the Safe Harbor provisions which protect ISPs only in so far as they are ignorant of the infringement, take immediate steps to remove the infringing content once notified (17 USC § 512(c)(1)(A) and do not receive a financial benefit directly attributable to the infringing activity (17 USC § 512(c)(1)(B)).

The letter from the Viacom’s lawyers, Shearman & Sterling, state that the defendants fail at least three preconditions of the DMCA including that the defendants:

* had “actual knowledge” of the infringement (17 USC § 512(c)(1)(A));* “received financial benefit directly attributable to infringing activity”, particularly through present and future advertising and had “the right and ability to control such activity.” (17 USC § 512(c)(1)(B)); and* do not operate a storage site or another core Internet function to which the DMCA applies (17 USC § 512(a)-(d)). Instead, Viacom states, YouTube are engaged in the operation of an entertainment site and “extensive distribution activities… that go far beyond the mere storage and display of videos at the direction of users” and therefore are beyond the scope of activities and conditions to which the DMCA applies.

Interestingly, the AmeriKat can only report on the filing to this limited extent because the remaining background section of the letter to Judge Stanton has been redacted.

The AmeriKat questions if this is perhaps due to October’s report by CNET that during disclosure YouTube’s internal emails were disclosed (see previous AmeriKat report here). These emails allegedly indicated that YouTube’s employees not only knew about the copyright infringement but also uploaded some of the infringing content themselves. YouTube spokesman Aaron Zamost issued a statement at the time stating that these

“characterizations of the supposed evidence, made in violation of a court order, are wrong, misleading or lack important context…”

This phrase is somewhat reiterated at the last paragraph of Google’s letter which states:

“It should go without saying that we disagree with Plaintiff’s characterization of the law and of the documents cited in their letter.”

The AmeriKat therefore wonders if these internal emails were the documents referred to in the redacted section of Shearman & Sterling’s letter.

Google’s letter reiterates their argument that they did not knowingly store or play infringing content on YouTube and, in so far as it did, it is protected by the Safe Harbor provisions. In support of their argument Google’s lawyers, Mayer Brown, relied upon the recent decisions involving Veoh Networks that held that video-sharing services, such as YouTube, are protected by DMCA’s Safe Harbour.

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